In a recent judgment, Hamann v. Matériaux de construction Oldcastle Canada inc., 2024 QCCA 1705, the Québec Court of Appeal (the “CA”) confirmed a ruling of the Québec Superior Court (the “SC”) dismissing an originating application because of the applicant’s failure to institute proceedings within three years of discovering damage to his roof tiles, which were constantly breaking.
The Facts
In 1994, Richard Hamann (the “Applicant”) hired Toitures Quatre-Saisons inc. (“Quatre-Saisons”) for the installation of Permacon roof tiles manufactured by Les Matériaux de constructions Oldcastle Canada inc. (“Permacon”) on his new residence.
In 1999, the Applicant noticed that some of the tiles were broken. He managed to replace them using extra tiles that had been left at the residence five years prior by Quatre-Saisons. The Applicant continued to replace the tiles himself as they broke, until significant flooding occurred in 2003.
On February 6, 2004, two representatives of Permacon visited the premises to assess the damage. Permacon then hired an expert to inspect the roof and determine the cause of the issue. The expert concluded that the premature deterioration of the tiles might have been caused by repeated freeze-thaw cycles.
On March 8, 2005, Permacon agreed to replace all tiles whose visible surface exhibited damage which impeded their performance. It indicated that it would send installers to the premises during the ongoing year (in 2005) and two years later (in 2007), further to which its intervention would be reassessed.
Despite its promise, Permacon did not send anyone in 2005, 2006 or 2007 to replace the roof tiles. Instead, it sent 300 new tiles to the Applicant’s residence around August 22, 2006. In 2007, the Applicant began to replace the tiles himself as they broke by using the new tiles supplied by Permacon, until they ran out in October 2018.
On October 7, 2019, the Applicant contacted Permacon to ask for new tiles. Permacon replied that it had stopped manufacturing the tiles in 1995 and invited the Applicant to fill out a claim form. The Applicant instead decided to hire another contractor to carry out remedial work starting in November 2019.
On March 24, 2021, the Applicant filed an originating application against Permacon, which was later modified to claim $236,449 for the replacement of the roof, $25,000 for the loss of the warranty issued by Permacon, as well as $45,268.95 for the Applicant’s professional fees.
Permacon replied with a ground of defence based on prescription, which was granted by the SC.
The SC’s Decision
The SC accepted Permacon’s prescription defence. It noted that the injury had occurred progressively since 1999, when the Applicant first noticed that some of the tiles were broken. The three-year prescription period thus began to run out as of 1999 pursuant to article 2926 of the Civil Code of Québec (“CCQ”), which provides that:
Where the right of action arises from moral, bodily or material injury appearing progressively or tardily, the period runs from the day the injury appears for the first time.
However, the SC found that Permacon’s interventions in 2004 and 2005 as well as its agreement to replace the broken tiles had interrupted prescription based on article 2898 CCQ:
Acknowledgement of a right, as well as renunciation of the benefit of the time elapsed, interrupts prescription.
In other words, the three-year prescription period that would have otherwise lapsed restarted as of 2005 under article 2903 CCQ:
After its interruption, prescription begins to run again for the same period.
Nevertheless, the SC concluded that it was impossible for the Applicant to act while Permacon promised to send installers to replace the broken tiles until 2007. The prescription was therefore suspended per article 2904 CCQ:
Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others.
The suspension of prescription pursuant to article 2904 CCQ ends when it is no longer impossible for the Applicant to act. On this issue, the SC decided that the Applicant was able to file suit when Permacon’s promise to replace the tiles expired on January 1, 2008, upon which the Applicant became aware that no installer had been sent.
Because the suspension of prescription ended on January 1, 2008, the Applicant’s right of action expired three years later, on January 1, 2011.
Therefore, prescription had expired for more than ten years when court proceedings were brought by the Applicant on March 24, 2021. The SC therefore accepted Permacon’s defence and dismissed the Applicant’s application.
The CA’s Decision
The Applicant appealed the SC’s decision and essentially raised two arguments: (1) Permacon’s promise to resolve the issue in 2005 suspended the prescription until 2018 when the Applicant ran out of tiles supplied by Permacon; and, (2) the trial judge erred in failing to determine that Permacon had renounced to prescription in 2019 by providing the Applicant with a claim form.
Permacon filed an application to dismiss the appeal, which was granted by the CA.
In its judgment, the CA first determined that the Applicant had failed to identify any palpable and overriding error in relation to the SC’s conclusion that the prescription had only been suspended until 2008, which is a question of fact. Indeed, the Applicant could have brought proceedings as early as 2008 once he became aware that Permacon had failed to comply with its promise to replace the tiles.
Similarly, the CA determined that the issue pertaining to the renunciation of prescription due to the claim form provided by Permacon is entirely a question of fact that requires deference towards the SC’s decision. On that issue, the Applicant failed to identify any palpable or overriding error.
Takeaways
As explained by the SC, prescription can expire even if a damage continues to occur on a gradual basis. In this case, the Applicant had noticed in 1999 that the tiles supplied by Permacon were defective. He could have filed proceedings back then.
The suspension of prescription in favour of the Applicant was somewhat accidental. Had Permacon refused to deal with the issue in 2004-2005, there would have been no interruption of prescription and there would have been no impossibility to act for the Applicant.
Finally, as noted by the CA, issues relating to prescription are often questions of fact. In this case, the result could have been different if Permacon had, for instance, sent installers to replace the tiles as promised.
